Kolcha Narvatbhai Ramsingbhai v. State of Gujarat Through Secretary
2011-09-13
ABHILASHA KUMARI
body2011
DigiLaw.ai
Judgment Smt. Abhilasha Kumari, J.—Rule. Mr. Niraj Soni, learned Assistant Government Pleader, waives service of Notice of Rule for the respondents. 2. This Civil Application No. 9060 of 2011 has been filed with a prayer to join the Superintendent of Post Offices, Bharuch Division, Bharuch, as party respondent to the proceedings. Inter-alia, it has also been prayed that the operation of the impugned order dated 06.04.2011 passed by the Commissioner of Tribal Development, State of Gujarat, which is the subject matter of challenge in Special Civil Application No. 6995 of 2011, be stayed. 3. In order to appreciate the background in which the application has been filed, it would be necessary to advert, briefly, to the facts of the case, as mentioned in the main petition. It is averred that the petitioner belongs to the “Hindu Kolcha” tribe, which is recognized as a “Scheduled Tribe” in the State of Gujarat. The Mamlatdar, Devgad Baria, issued a Caste Certificate to this effect to the petitioner, on 05.01.2000. The petitioner was appointed as Postal Assistant/Clerk on 05.07.2000, and is presently serving as such. The Caste Certificate issued to the petitioner was cancelled by the Commissioner of Tribal Development (Respondent No. 2), by order dated 30.07.2009. Aggrieved thereby, the petitioner preferred Special Civil Application No. 8934 of 2009, which was allowed by order dated 31.08.2009, as certain documents were not provided to the petitioner. It has been clarified in the said order that the quashing of the order would not debar the authority from passing a fresh order, in accordance with law, after complying with the directions issued in the said order. 4. The documents requested for by the petitioner were provided to him, and the respondent authority called the petitioner for hearing. After hearing the petitioner, the Commissioner of Tribal Development maintained the earlier order dated 30.07.2009, by passing order dated 06.04.2011, that is the subject matter of challenge in the main petition. 5. Insofar as the present application is concerned, it is stated in Paragraph-3, thereof, that the Superintendent of Post Offices, Bharuch, who is sought to be impleaded as Respondent No. 5, has issued a Memorandum dated 16.08.2011 to the petitioner, as it has been proposed to hold an inquiry against the petitioner, under the relevant Rules.
5. Insofar as the present application is concerned, it is stated in Paragraph-3, thereof, that the Superintendent of Post Offices, Bharuch, who is sought to be impleaded as Respondent No. 5, has issued a Memorandum dated 16.08.2011 to the petitioner, as it has been proposed to hold an inquiry against the petitioner, under the relevant Rules. On this ground, a prayer is made in the present application to join the Superintendent of Post Offices, as party Respondent No. 5 to this petition. 6. Mr. K.B. Pujara, learned advocate for the applicant (original petitioner) has submitted that in view of the fact that the departmental proceedings have been initiated against the petitioner by Memorandum dated 16.08.2011 issued by the Superintendent of Post Offices, Bharuch Division, who is the employer of the applicant, it would be appropriate and in the interest of justice, to join the said authority as party respondent to the petition, as action is being taken against the petitioner by the said authority, in pursuance of the impugned order dated 06.04.2011 passed by the Commissioner of Tribal Development. It is further submitted that the proposed respondent, being the employer of the petitioner, ought to be made aware of the proceedings before this Court, wherein the order of cancellation of the Caste Certificate has been challenged, so that no conflicting orders are passed, therefore, the prayers made in the application may be granted. 7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the respondents, has not taken any positive stand, either in the affirmative or in the negative, insofar as the prayer for joining is concerned, but has submitted that the Superintendent of Post Offices is an officer of the Central Government, whereas the impugned order has been passed by the Commissioner of Tribal Development, who functions under the State Government. 8. Having heard the learned advocates for the respective parties, it would be appropriate to consider whether the Superintendent of Post Offices, who is sought to be joined as party Respondent No. 5, is a proper or necessary party to the proceedings of the main petition. 9. It is not disputed by the learned advocate for the petitioner that the Superintendent of Post Offices has nothing to do with the passing of the impugned order dated 06.04.2011, whereby the Caste Certificate of the petitioner has been cancelled.
9. It is not disputed by the learned advocate for the petitioner that the Superintendent of Post Offices has nothing to do with the passing of the impugned order dated 06.04.2011, whereby the Caste Certificate of the petitioner has been cancelled. The said action has been taken by the Commissioner of Tribal Development, who is the Competent Authority to do so. The proposed respondent is the authority under whom the petitioner is working and both are employees of the Central Government. The petitioner has been served with a Memorandum, whereby a departmental inquiry against him has been initiated, as a consequence of the cancellation of the Caste Certificate. As such, this issue pertains to the service conditions of the petitioner, whereas in the petition, the challenge is to the cancellation of the Caste Certificate. Insofar as the initiation of departmental proceedings is concerned, the same may be a fall-out of the cancellation of the certificate but is not related to the challenge to the Caste Certificate for which the petition has been filed. As the proposed respondent has no role to play in the cancellation of the said certificate, his presence is not necessary to decide the issues arising in the petition. 10. The Caste Certificate of the petitioner has been cancelled by the Commissioner of Tribal Development, who is an authority of the State Government, whereas the proposed respondent functions under the Central Government. With regard to joining a person as party, certain settled principles of law may be noticed. In order to adjudicate whether a party should be joined in the proceedings, the Court has to consider whether the said party is either a necessary, or a proper party. As per the provisions of Order 1, Rule 10(2) of the Code of Civil Procedure, 1908, a party, whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the proceedings, may be joined, but if the presence of the said party is not necessary for the Court to effectually and completely adjudicate the issues involved in the proceedings then it is not incumbent upon the Court to join the said party. The proposed respondent is not a necessary party, as the petition can be decided effectively and completely in his absence.
The proposed respondent is not a necessary party, as the petition can be decided effectively and completely in his absence. He is also not a proper party, as he has no role in passing the impugned order. Merely, because the Superintendent of Post Offices has initiated departmental proceedings against the applicant will not make his presence necessary, in order to adjudicate the issue arising in the petition. 11. According to the learned advocate for the applicant, the proposed respondent should be joined as party in order to make him aware of the proceedings regarding the challenge to the Caste Certificate that is pending before this Court. This is not a plausible or legal ground for joining the said party. There are other ways to make the said authority aware of the proceedings and information regarding the same can be given to him by any other appropriate method, if so desired. 12. It ought to be noted that the Superintendent of Post Offices, Bharuch, has had nothing to do in the proceedings at any point of time even since 05.01.2000, when they have been initiated by the Commissioner of Tribal Development. In the earlier petition filed by the petitioner being Special Civil Application No. 8934 of 2009, the Superintendent of Post Offices was not impleaded as party. 13. For the above stated reasons, no legal ground exits for joining the proposed respondent in the petition. The application, qua this prayer, deserves to be rejected. It is, accordingly, rejected. 14. Insofar as the prayer regarding stay of the impugned order is concerned, Mr. K.B. Pujara, leaned advocate for the applicant submits that he is not pressing this prayer as the said prayer had already been made in the main petition, which is pending. Rule is discharged. No order as to costs. P P P P P